Sessions Recusal: Election And/Or Russia?

Back when Jeff Sessions recused from the investigation into Trump, I noted that it was actually fairly narrow. He recused from election-related issues, but said nothing about Russia.

[T]he only thing he is recusing from is “existing or future investigations of any matters related in any way to the campaigns for President of the United States.”

There are two areas of concern regarding Trump’s ties that would not definitively be included in this recusal: Trump’s long-term ties to mobbed up businessmen with ties to Russia (a matter not known to be under investigation but which could raise concerns about compromise of Trump going forward), and discussions about policy that may involve quid pro quos (such as the unproven allegation, made in the Trump dossier, that Carter Page might take 19% in Rosneft in exchange for ending sanctions against Russia), that didn’t involve a pay-off in terms of the hacking. There are further allegations of Trump involvement in the hacking (a weak one against Paul Manafort and a much stronger one against Michael Cohen, both in the dossier), but that’s in no way the only concern raised about Trump’s ties with Russians.

Which is why I was so interested that Jim Comey emphasized something else in his testimony (see this post on this topic) — issues pertaining to Russia. [my emphasis throughout]

We concluded it made little sense to report it to Attorney General Sessions, who we expected would likely recuse himself from involvement in Russia-related investigations. (He did so two weeks later.)

This came up in his hearing yesterday, as well. First Wyden asked why Sessions was involved in Comey’s firing if he got fired for continuing to investigate Mike Flynn’s ties to Russia.

WYDEN: Let me turn to the attorney general. In your statement, you said that you and the FBI leadership team decided not to discuss the president’s actions with Attorney General Sessions, even though he had not recused himself. What was it about the attorney general’s interactions with the Russians or his behavior with regard to the investigation that would have led the entire leadership of the FBI to make this decision?

COMEY: Our judgment, as I recall, is that he was very close to and inevitably going to recuse himself for a variety of reasons. We also were aware of facts that I can’t discuss in an opening setting that would make his continued engagement in a Russia-related investigation problematic. So we were convinced — in fact, I think we’d already heard the career people were recommending that he recuse himself, that he was not going to be in contact with Russia-related matters much longer. That turned out to be the case.

WYDEN: How would you characterize Attorney General Sessions’s adherence to his recusal? In particular, with regard to his involvement in your firing, which the president has acknowledged was because of the Russian investigation.

COMEY: That’s a question I can’t answer. I think it is a reasonable question. If, as the president said, I was fired because of the Russia investigation, why was the attorney general involved in that chain? I don’t know.

Then Kamala Harris asked whether there had been any official guidance on recusal.

HARRIS: Thank you. As a former attorney general, I have a series of questions in connection with your connection with the attorney general while you were FBI director. What is your understanding of the parameters of Attorney General Sessions’ recusal from the Russia investigation?

COMEY: I think it’s described in a written release from DOJ which I don’t remember sitting here but the gist is he will be recused from all matters relating to Russia or the campaign. Or the activities of Russia and the ’16 election or something like that.

HARRIS: So, is your knowledge of the extent of the recusal based on the public statements he’s made?

COMEY: Correct.

HARRIS: Is there any kind of memorandum issued from the attorney general to the FBI outlining the parameters of his recusal?

COMEY: Not that I’m aware of.

In every comment, Comey emphasized the Russian aspect. Indeed, most of his comments only mention Russia; just one instance mentions the election.

Indeed, yesterday’s hearing made it clear that Comey believed Sessions should be recused from Russia-related issues because of unclassified issues that include his undisclosed two (now three) conversations with Russian Ambassador Sergey Kislyak.

After yesterday’s hearing, DOJ issued a statement (reproduced in its entirely below), and also released an email that appears to serve as the written guidance on Sessions’ recusal. Yesterday’s statement makes the limitation to election-related issues even more explicit.

Given Attorney General Sessions’ participation in President Trump’s campaign, it was for that reason, and that reason alone, the Attorney General made the decision on March 2, 2017 to recuse himself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.

So while the email directive does state Sessions’ recusal “extends to Department responses to Congressional and media inquiries related to any such investigations,” not a single thing from DOJ ever mentions the word Russia.

There are actually many important potential implications of this.

It may mean, for example, that Sessions feels he had every right to help Trump fire Comey for his aggressive investigation in Russian issues — even in spite of the fact that his own actions may be reviewed in the Russian investigation — because the Flynn investigation pertained to issues that happened after the election.

More alarmingly, it may mean that there will be a squabble about the scope of Robert Mueller’s special counsel investigation, which has already started digging into matters of Russian corruption that go back years, because Rod Rosenstein overstepped the scope of his own authority based on the limits of Sessions’ recusal.

Jim Comey thinks that as soon as February 14, it was clear that Sessions had to recuse from Russian related issues. Instead (all the evidence suggests) he recused only from election related issues.

The difference in understanding here is troubling.

Update: A friend notes that Jeff Sessions basically relied on Rod Rosenstein’s letter in recommending Trump fire Comey.

[F]or the reasons expressed by the Deputy Attorney General in the attached memorandum, I have concluded that a fresh start is needed at the leadership of the FBI.

The friend suggested that because Comey’s actions implicated the election, that means Sessions intervened in matter pertaining to the election (albeit for Trump’s opponent).

I’m not so sure. The phrasing of Rosenstein’s letter here is critical. Democrats may be angry at Comey for reopening the investigation (and sending a sure-to-leak letter to a stable of GOP Committee Chairs) days before the election. So to Democrats, Comey’s handing of the Hillary investigation pertains to the election.

But Rosenstein frames the issue in terms of “usurp[ing] the Attorney General’s authority” and “supplant[ing] federal prosecutors and assum[ing] control of the Justice Department.” While Rosenstein cites Eric Holder and Donald Ayer describing how Comey’s actions violated long-standing policies pertaining to comments in advance of elections, the Deputy Attorney General himself pitches it as insubordination.

Update: On Twitter Charlie Savage suggested the scope of the recusal could be taken from the language of Comey’s confirmation of the investigation in a HPSCI hearing on March 20, arguing that on March 2, when Sessions recused, the investigation and its ties to campaign members who spoke to Russians had not yet been disclosed.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

Except this statement says nothing about Jeff Sessions’ recusal, and in Thursday’s testimony, Comey said he was unaware of a memo aside from Sessions public statement. As noted above, the email that DOJ has now pointed to says nothing about Russia.

Plus, even if the recusal originally intended to include the secret Russia investigation, the statement written on Thursday, very clearly in response to Comey’s testimony and repeated claims that Sessions had to recuse from Russia-related issues, said the only reason Sessions recused was because of the campaign tie. And as I noted in my original post on the scope of Sessions’ recusal, he played games in his admission of conversations with Sergey Kislyak as to whether they pertained to Russia.

Update: In a March 6 letter to SJC claiming he didn’t need to correct his false testimony on conversations with Sergey Kislyak, Sessions said that his recusal should cover Russian contacts with the Trump transition and administration.

The March 3, 2017, letter also asked why I had not recused myself from “Russian contacts with the Trump transition team and administration.” I understand the scope of the recusal as described in the Department’s press release would include any such matters.

This would seem to conflict with Thursday’s statement.

______________________________________________________________________________

FOR IMMEDIATE RELEASE

THURSDAY, JUNE 8, 2017

DEPARTMENT OF JUSTICE ISSUES STATEMENT ON TESTIMONY OF FORMER FBI DIRECTOR JAMES COMEY

 

WASHINGTON – In response to testimony given today by former FBI Director James Comey, Department of Justice Spokesman Ian Prior issued the following statement:

  • Shortly after being sworn in, Attorney General Sessions began consulting with career Department of Justice ethics officials to determine whether he should recuse himself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.

Those discussions were centered upon 28 CFR 45.2, which provides that a Department of Justice attorney should not participate in investigations that may involve entities or individuals with whom the attorney has a political or personal relationship. That regulation goes on to define “political relationship” as:

“[A] close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof ***”

Given Attorney General Sessions’ participation in President Trump’s campaign, it was for that reason, and that reason alone, the Attorney General made the decision on March 2, 2017 to recuse himself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.

  • In his testimony, Mr. Comey stated that he was “not *** aware of” “any kind of memorandum issued from the Attorney General or the Department of Justice to the FBI outlining the parameters of [the Attorney General’s] recusal.” However, on March 2, 2017, the Attorney General’s Chief of Staff sent the attached email specifically informing Mr. Comey and other relevant Department officials of the recusal and its parameters, and advising that each of them instruct their staff “not to brief the Attorney General *** about, or otherwise involve the Attorney General *** in, any such matters described.”
  • During his testimony, Mr. Comey confirmed that he did not inform the Attorney General of his concerns about the substance of any one-on-one conversation he had with the President. Mr. Comey said, following a morning threat briefing, that he wanted to ensure he and his FBI staff were following proper communications protocol with the White House. The Attorney General was not silent; he responded to this comment by saying that the FBI and Department of Justice needed to be careful about following appropriate policies regarding contacts with the White House.
  • Despite previous inaccurate media reports, Mr. Comey did not say that he ever asked anyone at the Department of Justice for more resources related to this investigation.
  • In conclusion, it is important to note that after his initial meeting with career ethics officials regarding recusal (and including the period prior to his formal recusal on March 2, 2017), the Attorney General has not been briefed on or participated in any investigation within the scope of his recusal.

# # #

17-631

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

10 replies
  1. Brad says:

    Although, the pretextual reason for Comey’s dismissal was his handling of the Clinton email fiasco. Based on DOJ reasoning for Session’s recusal, this is an election related reason, and, Sessions should not have been involved. Since it says campaigns in the plural, I assume that applies to Clinton as well.

    Nonetheless, the statement from the DOJ is ambiguous. Russian related interference is related to campaigns for President, but not explicitly stated. I think most though would read the statement from DOJ as a blanketed recusal for anything related to the campaign for President for 2016.

  2. Kim Kaufman says:

    How does one separate the “campaign” from “Russia” when it’s supposedly all about Russia doing something (perhaps) to our election? It seemed to me that Comey was throwing both Trump and Sessions under the bus in his performance art piece. But at this point I think they’re all liars… I just don’t know what they’re lying about or for other than saving their job or reputation. Sessions could try to limit Mueller but I get the sense that Mueller has been around a few more blocks than Sessions and will find a way to go where he wants to go.

    Meanwhile, Jonathan Turley did not think Comey’s admission of leaking his document, written on FBI time, was OK. https://jonathanturley.org/2017/06/08/did-comey-violate-laws-in-leaking-memo/

     

  3. Cheryl Rofer says:

    Thanks, Marcy. I think that figuring out what Sessions was doing in those meetings with Russians would go a long way to making sense of the Russian involvement. He seems to have the least legitimate reasons for meeting with them of any of the group that did.

  4. earlofhuntingdon says:

    It seems that Mr. Sessions retains his job as AG only to the extent he protects Trump. Trump has repeatedly made clear the height of his anger that Sessions recused himself at all, much less on an issue that could remove Trump or a close associate from office, to the extent that Sessions is rumored to have offered his resignation over it.

    That makes it likely that Sessions would try to claw back the extent of his recusal – or violate it in ways he thinks he can get away with (who can call him on any violations?) – in order to do Job 1, protect Donald.

    This all begs the question of why Donald is so afraid. Of what is he afraid? He’ll throw anyone under the bus, so it must be about Donald. The clouds he’s worried about could only be those darkening his own horizons. That makes Mueller’s and parallel congressional investigtions even more important. And the Republicans will have to start practicing before their mirrors why it was so important to impeach and try a president from their own party.

    • RickR says:

      Agree. And I think it played like this:
      Sessions knew he had to recuse. Trump did not want that, maybe demanded that he not, maybe getting other advice that he should just jettison him. Sessions endeavored to fix it so in the unfettered period (02/09-03/02) he was trying to find out all he could about the investigations while negotiating with DOJ ethics who are pro’s but likely not his best pals. Sessions gets a deal with ethics that allows him to announce the “campaign recusal”.  There are surely guidelines yet unseen to us. The ethics boys have documented themselves out the wazoo. Sessions sold it to Trump but minimized (or doesn’t even mention) the guidelines. Trump thought they were good to go. Sessions recused.
      Also in the unfettered period Sessions tried to learn all he could about the investigations. He got the slow walk from everyone but knew he couldn’t push too hard. The Trump/Comey conversations began. Ultimately the decision was made to fire Comey, likely supported by Bannon and Kushner but not Sessions. Trump demanded justification for the firing from Sessions. He got the absurd Clinton emails excuse because that’s all Sessions had without sticky ethics issues. That bombed. Trump opened his mouth and just made it worse.
      I think sometime after that Trump became aware that Sessions is way more hamstrung on Russia that he’d been led to believe. He is livid. Sessions is useless on Russia but can’t be fired – not now.

      So Sessions is a marked man. The only way he keeps his job is if Trump loses his. Interesting.

      • Mark S says:

        Trump’s obsession is with Comey’s refusal to say publicly that he was not ‘under (criminal) investigation’.  This is because his campaign theme was  ‘Lock Her Up!’ and totally founded on the idea of a criminal investigation of Clinton.  That he might be thought in a parallel situation was idee fixe for him, something he could comprehend and fear.  He chucked Comey because he wouldn’t make public that he wasn’t (at that precise moment!) under investigation. Even this was not rational, but basically an act of rage.  Comey’s refusal to say publicly what they both knew (up to that point) inclined him to paranoia and to impute sinister motives to Comey.  He is too unfocused to get any bigger picture and to have any further reason.

        When Trump later said all that ‘Russia’ stuff was behind him with the firing, he was in fact only thinking of his own case and Comey’s ‘sinister’ refusal.  It’s clear he doesn’t really care, in the abstract, that others go down in flames. Once his addled brain has a concrete case before it, like Flynn’s, he can admittedly get emotional.

        The Sessions letter makes sense of the firing in its idiotic way and is not a mass of irrelevant pretextual considerations as people pretend. Sessions knew, probably semi-corruptly, that Trump was obsessed with Comey’s failure to make public Trump’s not-at-the-moment-being-under-FBI-investigation, and Trump’s suspicion of dark motives – he probably shared these. Comey’s genuinely epic opacity in the Clinton actions validated these suspicions in his and certainly Trump’s addled brain.  So he used them as ground. They were part of the ground, or the semi-rational part of it.

    • emptywheel says:

      Yeah, I meant to raise all those stories about him almost being fired. So I do expect some of that in days ahead.

  5. RickR says:

    Game on. The “campaign only” recusal is an obvious issue but Widen/Harris/Comey avoided it as a specific topic. Who of us believes the distinction was lost on Comey? His choice to use the uncertainty of memory was a nice ploy to imply that the Russia/campaign issues are inherently inseparable. Sessions/DOJ felt it necessary to issue a statement to clarify (IMO, unwise). So sooner or later the onus will be on Sessions to explain the Russia/campaign rationale. The song and dance in doing that will likely undermine his contention that he DID reply to Comey’s request that he be present for Trump encounters.
    Meanwhile, if not already, differentiation between “campaign” and “Russia” becomes a friction point between Sessions and Mueller with Sessions pounding the national security drum.

    OT (kinda): Great insight by Benjamin Wittes at lawfareblog.com. The minotaur in the labyrinth.

    https://www.lawfareblog.com/nature-person-initial-thoughts-james-comeys-testimony

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